Tolerating the Intolerables: Should the First Amendment Protect Westboro Baptist?

“Congress shall make no law…abridging the freedom of speech.” These words remain one of the most revered clauses in the United States Constitution. They are also some of the most controversial. How far do free speech rights extend? What kinds of speech are and are not covered?

These questions continue to be raised in a case currently before the Supreme Court, Snyder v. Phelps. The facts pertain to the infamous Westboro Baptist Church, whose members are predominately the family of the church’s pastor, Fred Phelps. Many readers no doubt possess some prior knowledge of these persons. They declare God’s hatred for gays, Catholics, and a myriad other groups. Further, they have begun picketing the funerals of soldiers killed in Iraq and Afghanistan, holding up signs saying things like “Thank God for Dead Soldiers” and “God Hates the USA.”

After one such funeral the father of a deceased soldier, Mr. Snyder, sued Westboro for intentionally inflicting emotional distress, receiving $11 million in damages. However, a judge reduced the verdict to $5 million and then, on appeal, the entire decision was overturned in favor of Westboro on free speech grounds. Last week the case was heard before the Supreme Court with a decision expected in the Spring.

While the vast majority of Americans find their speech abhorrent, an interesting cross-section of the public supports their right to speak in this instance. The liberal New York Times, conservative Wall Street Journal, and many more newspapers have all come out to support a ruling in their favor. Further, liberal and libertarian professors from several noted universities have joined in saying this test of free speech should protect Westboro’s speech.

Many before have eloquently castigated Westboro for the evil of their message and its utter antagonism to the Gospel. The fact that they claim the name of a church—a body united to the living Christ—is both blatantly false and savagely damaging to the work and witness of the true Body of Christ. In light of others’ remarks on this aspect of the Phelp’s clan, I instead desire to focus on the Constitutional issue and its importance not only for this case but beyond it.

On one level, the debate relates to issues of privacy (which the Court has understood to rest primarily in the Fourth Amendment) versus free speech. A Father desires to bury his son in private; a group desires to speak in public. Which claim holds precedence? Context is important for this issue. A funeral is prima facie a private act done for purposes related to family and often religion. Both church and family are institutions with an existence distinct from the state and thus contain a sphere where free speech rights do not apply. Thus churches and religious schools can censor what is said in attempts to maintain orthodoxy and children cannot sue their parents for the right to speak in a family discussion. Unless the family of the fallen soldier did something to make the funeral public they do hold a strong argument for restricting the speech of the Phelps’ family. If the Phelps desire to picket government buildings or to speak in other public places, context arguments shift entirely in their favor.

Such reasoning can be seen as important for the maintenance of the true Church if the culture becomes too antagonistic to the Gospel. By such rules the Church could still proclaim the Gospel in public and protect herself from both government intrusion and from other persons seeking to damage her from within. Thus there are Christians who support a verdict for the Phelps on these grounds.

On another level, the question of the nature of speech itself is at issue. Is the message of the Phelps’ protected speech at all, regardless of context? In other words, could it be banned outright? Certain forms of speech are banned already, such as “fighting words” that seek to instigate violence or speech that might directly lead to the harm of another. Yelling “fire” in a crowded theater is the most often used example. Also, there is debate as to what constitutes speech. Are there words that do not really convey any message at all? Do physical acts or representations represent speech?

Here, the real question is not whether the Phelps’ signs and other statements are speech with a message. They are and that is the problem. A question we must ask is whether moral judgments as to the content of speech have any constitutional relevance today. What if we admit (as most do) that the Phelp’s message is flat-out evil? Is that a basis for censoring their speech?

On one hand, we could answer no. The First Amendment is meant to protect unpopular speech, including that which many find objectionable. Further, we could see true Christianity—with its moral positions and exclusivity regarding salvation—defined as hateful and evil by the larger society. In such a case we would desire protection from the First Amendment for the proclamation of the Gospel. Should we not extend the same protection here, hoping that instead of making the Phelps’ speech illegal, we defeat them in public discourse?

On the other hand, we could answer yes. All laws are at their heart moral laws for all law declares some actions to be right and others to be wrong. Therefore, why not exercise moral judgment here and make unlawful what is so blatantly evil? Why not work by law to reinforce what it means to be a good citizen, trusting that laws in cooperation with other institutions like churches, families, and social organizations can cultivate a culture more virtuous? Such a move would not necessarily instigate a slippery slope toward totalitarian censorship; that would only be a threat when the positive laws passed by the government lose all connection to the moral law written on men’s hearts. If such an extreme were to happen, protections of free speech would likely be of no use anyway.

These questions do not hold easy answers. Yet they are questions that Christians must struggle with as they live in this time and place. While we condemn Westboro as an enemy of the Gospel, let us also consider what we as citizens should do about their right to free speech.